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Section 7: The Criminal Justice System

India has not ratified the Convention against torture. There are of course mechanisms that have been put in place by human rights movements in the country to force state accountability with respect to torture particularly in custody. And these mechanisms apply equally to persons of disabilities.

The Criminal Procedure Code33 contains measures designed to protect persons with psychiatric disabilities from facing trial. Article 328 dictates that if a Magistrate determines that a person against whom [an] inquiry is being held is of unsound mind and consquently incapable of making his defence, he is required to postpone further proceedings in the case. Article 330 instructs the Magistrate or Court to order the accused to be detained in a safe custody in such place and manner as he or it may think fit, and shall report the action taken to the State Government.

Note #33
Chapter 6: Specific Social and Cultural Rights and their Relevance to Persons with Disabilities

It has been a cause of concern that there have been more than a couple of instances of torture in custody that have resulted in disabilities under trials and convicted prisoners --blinding suspects in prison (the Bhagalpur blindings), women subjected to sexual torture in custody becoming mentally ill are known cases. There have been instances where private facilities for persons with intellectual disabilities have violated norms by chaining inmates to beds, or practicing other forms of degrading and inhuman treatment. The justification for the forced hysterectomies of women with intellectual disabilities in a government facility in Pune, was that they are vulnerable to assault, and therefore should at least be protected against pregnancy, speaking to concerns of security against violence and exploitation for women of within Mental Health facilities.

Note #34
The Mental Health Act, 1987

One specific law is for persons with mental disabilities only not mentioning persons with physical disabilities. Section 81 (Chapter VIII) of the Mental Health Act34 of 1987 provides that no mentally ill person should be subject during treatment to any indignity (whether physical or mental) or cruelty. Several important cases have reinforced this principle.

Note #35
(1986) 3 SCC 632, Vide order dated 15.4.1986

In the case of Sheela Barse vs. Union of India 35 (1986), the Court criticized the seemingly widespread practice of keeping children with mental and physical disabilities in jail for safe custody, and placed responsibility on the State Government to move them to an environment where they could receive proper care, medical treatment, and vocational training when possible.

Note #36
1983 AIR(SC) 339

The case of Veena Sethi vs State of Bihar 36 (1982) also addressed the practice of keeping mentally ill persons in jail, where the Court declared that all mentally ill inmates must be examined every six months and released immediately if they are found to have no mental illness. In addition, it reaffirmed the principle that there should be an adequate number of institutions for persons with psychiatric disabilities, and that jail should not be considered an appropriate location for providing safe custody.

Note #37
(1983) 2 SCC 308

Several cases have addressed the deeply inhumane conditions of many institutions established to provide care for persons with psychiatric. In Dr. Upendra Baxi vs. State of Uttar Pradesh 37 (1983), the Supreme Court ordered a medical panel to evaluate the inmates at the Agra Home. The report demonstrated that though a majority of inmates had varying degrees of mental disability, some had been released by the Superintendent without being evaluated and had not been provided any means by which to travel to their home towns. The Court recommended that psychiatric treatment be provided.

Note #38
(1989) SUPP 1 SCC 644

In Rakesh Chandra Narayan vs State of Bihar 38 (1989), the Supreme Court found the conditions in the Mental Hospital near Ranchi to be inhumane, and appointed a committee to visit the site and submit a report about the establishment's operations and standards of care.

Note #39
Case - Writ Petition No 1537 of 1984, Bombay
Note #40
[(1995) Supp. 4 SCC 505]
Note #41
(2002) 3 SCC 31

In the case of S.P. Sathe vs. State of Maharashtra 39 (1984), the Bombay High Court regulated the administration of electroconvulsive therapy (ECT) to mentally ill persons after hearing of the conditions at the Institute of Psychiatry and Human Behavior in Panaji, Goa. Patients at the IPBH were reportedly given ECT without anaesthesia, a practice which could lead to general discomfort as well as bone fractures and dislocations. In addition, the IPHB neglected to obtain informed consent from the patients before administering the treatment. In Chandan Kumar Banik vs. State of West Bengal 40 (1995), the Supreme Court criticized the inhumane conditions at the Mankundu Mental Hospital in the District of Hooghli, banned the practice of restricting patients with iron chains, and instead ordered drug treatment for them. In Tamil Nadu, in Re vs. Union of India 41 (2002), the Supreme Court ordered each State to undertake a survey of every institution offering psychiatric care to ensure that all were following the prescribed standards set out in the Mental Health Act of 1987.

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